Causes of Action as Property: Logan v. Zimmerman Brush Co. and the Government-as-Monopolist Theory of the Due Process Clause
![handle is hein.journals/emlj31 and id is 503 raw text is: CAUSES OF ACTION AS PROPERTY: LOGAN v.
ZIMMERMAN BRUSH CO. AND THE
GOVERNMENT-AS-MONOPOLIST THEORY OF
THE DUE PROCESS CLAUSE
by'
Timothy P. Terrell*
I. INTRODUCTION
In a recent article,1 I developed in some detail a method of anal-
ysis of cases involving purported property interests implicating
the Due Process Clause.2 As that article went into print, the Su-
preme Court announced yet another decision in its unending and
now infamous series of attempts to comprehend the concept of
property in its constitutional context.3 Separate and immediate
treatment of this case-Logan v. Zimmerman Brush Co.-in the
present article is provoked for several reasons. As an initial matter,
the case involves a particular issue of property that I handled
only tangentially in the preceding article5--specifically, whether
causes of action can be labeled property, and if they can, what
* Associate Professor of Law, Emory University School of Law. B.A., University of
Maryland, 1971; J.D., Yale Law School, 1974; Dipl. in Law, Oxford University, 1980.
Terrell, Property, Due Process, and the Distinction Between Definition and
Theory in Legal Analysis, 70 GEO. L.J. 861 (1982) [hereinafter cited as Property, Due
Process].
2 U.S. CONST. amend. V (No person shall... be deprived of life, liberty, or property,
without due process of law .... .); id. amend. XIV, § 1 (nor shall any State deprive any
person of life, liberty, or property, without due process of law).
3 This series essentially begins with Flemming v. Nestor, 363 U.S. 603 (1960) (social
security benefits), and includes at least the following cases in chronological order: Goldberg
v. Kelly, 397 U.S. 254 (1970) (welfare benefits); Board of Regents v. Roth, 408 U.S. 564
(1972) (employment at a state university); Perry v. Sindermann, 408 U.S. 593 (1972) (em-
ployment at a state university); Arnett v. Kennedy, 416 U.S. 134 (1974) (government em-
ployment); Goss v. Lopez, 419 U.S. 569 (1975) (right to a public education); Mathews v.
Eldridge, 424 U.S. 319 (1976) (social security benefits); Bishop v. Wood, 426 U.S. 341 (1976)
(employment as a policeman); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978)
(public utility services); Leis v. Flynt, 439 U.S. 438 (1979) (attorney representing a client
pro hac vice); Martinez v. California, 444 U.S. 277 (1980) (wrongful death action); O'Bannon
v. Town Court Nursing Center, 447 U.S. 773 (1980) (Medicaid benefits); Parratt v. Taylor,
451 U.S. 527 (1981) (state prisoner's hobby kit).
4 455 U.S. 422 (1982).
5 Property, Due Process, supra note 1, at 920-23.](ViewImageLocal?handle=hein.journals/emlj31&div=25&collection=&method=preview&ext=.png&size=3)
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Causes of Action as Property: Logan v. Zimmerman Brush Co. and the Government-as-Monopolist Theory of the Due Process Clause
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